60 Minutes' Ordered to Pull Interview in Tobacco Report

By BILL CARTER

Published: November 9, 1995

In an atmosphere of heightened tension between cigarette manufacturers and the press, CBS's lawyers ordered the news program "60 Minutes" not to broadcast a planned on-the-record interview with a former tobacco company executive who was harshly critical of the industry.

Instead, the program has substituted a revised report for this Sunday that will examine how cigarette manufacturers try to prevent information from reaching the public.

The basis for CBS's concern with the original interview was not a threat of a suit for libel, network officials said. Rather, the officials said they feared, in part, that they might be held legally responsible because the executive had an agreement with the company, the Brown & Williamson Tobacco Corporation, not to disclose internal company matters.

But Mike Wallace, the "60 Minutes" correspondent who reported the story, said that the recent settlement of a multibillion-dollar lawsuit brought by the Philip Morris Companies and the R. J. Reynolds Tobacco Company, a unit of RJR Nabisco Holdings, against Capital Cities/ ABC Inc., the owner of ABC News, had changed the way that CBS lawyers looked at the "60 Minutes" interview.

"The ABC lawsuit did not chill us as journalists from doing the story," Mr. Wallace said. "It did chill the lawyers, who with due diligence had to say, 'We don't want to, in effect, risk putting the company out of business.' "

In interviews yesterday, both Mr. Wallace and Don Hewitt, the executive producer of "60 Minutes," said they agreed with the lawyers' decision and supported the revised report to be broadcast on Sunday night.

"I'm very comfortable with the decision," Mr. Hewitt said. He added that CBS had not received any threat of a lawsuit from any tobacco company because of the planned interview. "We just knew that ABC had looked into the barrel of a gun," Mr. Hewitt said.

But in a speech to the National Press Club in Washington on Oct. 17, Mr. Hewitt alluded to a piece he said "60 Minutes" was then planning on the tobacco industry.

"We have a story that we think is solid," Mr. Hewitt said then. "We don't think anybody could ever sue us for libel. There are some twists and turns, and if you get in front of a jury in some states where the people on that jury are all related to people who work in tobacco companies, look out. That's a $15 billion gun pointed at your head. We may opt to get out of the line of fire. That doesn't make me proud, but it's not my money. I don't have $15 billion. That's Larry Tisch."

Laurence A. Tisch is the chairman of CBS, which recently made a $5.4 billion merger agreement with the Westinghouse Electric Corporation. CBS shareholders will vote on the merger next week. CBS's decision to pull the interview comes as the tobacco industry is under fierce attack, facing threats by President Clinton to further curtail cigarette advertising and to increase regulation of tobacco. The industry, in turn, has mounted a major public relations campaign, particularly aimed at critics who say manufacturers have long misled the public about the dangers of their product.

Last summer, ABC News settled its court battle with Philip Morris and R. J. Reynolds, in part, by making a rare apology for a report it broadcast saying that the companies had added nicotine to their cigarettes. ABC also paid substantial legal costs.

Mr. Wallace and the CBS officials declined to say which tobacco company employed the former executive. But a person employed by the network said it was Brown & Williamson.

A spokesman for Brown & Williamson said the company had been asked to participate in Sunday's planned broadcast and had had no contact with CBS's legal department on the piece that was pulled.

Yesterday Mr. Hewitt said he was not satisfied until this week that the tobacco story was ready to be broadcast. The revised version includes only a brief segment with the former tobacco industry executive, whose face does not appear and whose voice is disguised. He talks about death threats he has received after making known his intention to reveal information about tobacco company practices he witnessed, Mr. Hewitt said.

The executive, whose name was not disclosed, signed what is known as a non-disclosure contract with his company when he departed. It was that contract that became the center of the debate inside CBS.

Mr. Wallace said it was the network's general counsel, Ellen Oran Kaden, who raised concerns about a possible suit for tortious interference, the legal term that relates to inducing a party to break a contract. He said no other "60 Minutes" report had ever raised legal questions on that basis. Mr. Hewitt said, "I'd never even heard the term before."

But Eric Ober, president of CBS News, said the network had in the past raised concerns about reports that involved "contractual matters, if not specifically tortious interference." He could not offer an example, he said.

He added that the original interview was not ordered to be shelved solely because the general counsel feared a suit for tortious interference.

"We looked at the story very carefully," Mr. Ober said. "A contract is a contract. I felt for a number of reasons, both editorially and legally, that changes had to be made in the piece."

Prominent media lawyers could recall no case in which the theory of tortious interference had been used successfully to sue a news organization. One lawyer experienced in news media litigation, Bruce W. Sanford of the Washington firm of Baker & Hostetler, called it "a truly eccentric argument."

But like several other lawyers expert in First Amendment law, he said that such novel legal strategies were symptomatic of a new wave of aggressive efforts by plaintiffs to "do end runs around existing First Amendment law."

Robert Sack, who successfully defended The Louisville Courier Journal and USA Today against Brown & Williamson earlier this year in a case involving the disclosure of confidential company documents to the newspapers, said that if the press could be held liable for merely seeking information from someone who was contractually bound to remain silent, it would mean "quite an extraordinary and new limitation on the news-gathering process."

Both Mr. Wallace and Mr. Hewitt said they had no objection to the decision made by Ms. Kaden or Mr. Ober. "These people are dead honest, I believe," Mr. Wallace said. Mr. Hewitt said the revised piece was "better, I think, than what we had before."

But both men acknowledged that ABC's experience with Philip Morris has had an impact on how freely news organizations can report on the tobacco industry.

"They proved in the ABC suit that they will go to the wall," Mr. Wallace said, referring to the tobacco industry.